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(19901 1 Sri LR.
KAMIL HASSAN
v.
FAIRLINE GARMENTS (INTERNATIONAL) LTD.AND TWO OTHERS
SUPREME COURT.
FERNANDO. J„ KULATUNGA, j. AND RAMANATHAN, J.
S. C. APPEAL No. 50 OF 1988.
NOVEMBER 29 AND DECEMBER 1. 1989.
Industrial Dispute – Termination – Termination of the Employment of Workmen (SpecialProvisions) Act, No. 45 of 1971, amended by Law No. 4 of 1976 • Non-compliance withCommissioner's order – Rule nisi for contempt – Difference between 'appeals' arid
SC Kamil Hassan v. Fairline Garments (International) Ltd. and Two Others 395
‘applications’ for certiorari – Use of contempt proceedings to secure execution – Article 105
of the Constitution.
In an application for relief in an industrial dispute the Commissioner's order entitled thepetitioner to –
re-instatement with effect from 8.9.87
back wages (Rs. 139,437.50) for period from 16.8.85 to16.9.87
no other benefits from 16.8.85 to 8.9.87
The Employee appealed to the Court of Appeal which after issuing a stay order, set asidethe Commissioner's order. The Supreme Court allowed the appeal-of the workman and setaside the order of the Appeal Court. On the Supreme Court judgment the petitioner wouldbe entitled to –
reinstatement with effect from 22.9.89.
back wages from 16.8.85 to 8.9.87.
back wages for the period irom 8.9.87 until compliance with order for reinstatement.
all “benefits" which he would have been entitled to estimated later at Rs. 100,000.
The only variation by the Supreme Court is the postponement of the date for reinstatementcaused by the time lag in the disposal of the petitioner's application.
The petitioner moved for a rule nisi for an alleged contempt of the Supreme Court, forenforcement of the Supreme Court judgment and compensation.
Held :
The employer sent the petitioner a letter reinstating him. The petitioner reported for workon one day but did not attend thereafter through fear of the security personnel in thepremises. Further, no work was allocated. The employer explained that the securitypersonnel were there because one of the Directors was an M. P. and there was no workwhich the Company was able to give.
The true position was that the petitioner would not have gone for work through fear evenif work was assigned, although prima facie the petitioner was not re-instated on 22.9.89.The material was insufficient to establish prima facie that the employer acted wilfully ordeliberately in not assigning work.
Unlike in proceedings under the Termination Act, when the burden of provingcompliance with an order under the section is placed (by section 7 (2)) on the employer,in these (contempt) proceedings it is for the petitioner to establish prima facie that therewas no reinstatement and that this was intentional. Nor does the material establish primafacie that the Company or any Director was acting in defiance of the judgment of the Courtor wilfully refusing to obey. The date fixed for reinstatement could not be complied withbecause the Court of Appeal had issued a stay order and later quashed the order of theCommissioner.
Re the back wages the Company had paid a part and pleaded for time because of theirliquidity problems. There was no contempt here.
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11990) 1 Sri LR.
The benefits had not been quantified until later when it was stated to be of the valueof Rs 100,000. The breakup of this Rs. 100.000 was given only on 6.10.89 by thepetitioner's attorneys-at-law.
The nature of certiorari proceedings as distinct from appellate proceedings must beborne in mind. Certiorari will lie to quash the order of the Commissioner wholly or in pari,where he assumes a jurisdiction which he does not have, or exceeds that which he has,or acts contrary to natural justice, or is guilty of an error of law; it cannot be utilised to correcterrors, or to substitute a correct order lor a wrong order. If the Commissioner's order wasnot quashed in whole or in part, it had to be allowed to stand unaltered.
Judicial review is radically different from the system of appeals. When hearing an appealthe court is concerned with the merits of the decision under appeal. In judicial review, theCourt is concerned with its legality. On appeal the question is ‘right or wrong'. On reviewthe question is lawful or unlawful. Judicial review is a fundamentally different operation.Instead of substituting its own decision for that of some other body as happens when anappeal is allowed, the court on review is concerned only with the question whether the actor order under attack should be allowed to stand or not. Hence neither of the appellatebodies can vary the Commissioner's order and any ambiguity must be resolved on thebasis that no such variation is intended.
In the case of disobedience to injunctions and undertakings given to court 'coerciveorders’ there is strict liability. But in the case of other orders, non-compliance with thejudgment of a court would not ordinarily be a contempt of court. In the latter case wherethe law provides for execution, contempt proceedings should not be resorted to obtainexecution. Even where there is no provision for execution, contempt proceedings cannotbe resorted to as a thumbscrew to obtain execution and mere disobedience would not bea contempt unless there is defiance of the court or contumacious conduct.
» Cases referred to ;
Ismail v. Ismail 22 NLR 190
State Graphite Corporation v. Fernando ft981) 2 Sri LR 401. (1982) 2 Sri LR 684
Dayawathie v. Fernando [1988] 2 Sri LR 314
APPLICATION for rule nisi for contempt and enforcement of Supreme Court judgment.
Dr. H. W. Jayewardene Q. C, with Uthikar Hassim, Harsha Amarasekera and MarshalCabraal for Petitioner.
H. L de Silva, P. C. with Mahanama de Silva and M.S.M. Suhaid for 1 stand 4th Defendant.Faiz Mustapha, P. C. with Nigel Hatch for 5th and 10th Respondents.
D. Premaratne, Deputy Solicitor-General with Kalinga Indatissa, S. C. as amicus curiae.
Cur. adv. vult.
March 2, 1990.
FERNAMDO, J.
On 16.8.85, the Petitioner complained to the 2nd Respondent, theCommissioner ot Labour (“the Commissioner”), that the 1 st Respondent
SC Kamil Hassan v. Fairline Garments (International) Ltd and Two Others 397
(Fernando. J.l_
Company (“the Company”) had terminated his employment as aPurchasing Officer, in contravention of the Termination of Employmentof Workmen (Special Provisions) Act, No. 45 of 1971, as amended by LawNo. 4 of 1976 (“the Termination Act”). After inquiry, the 2nd Respondentby order dated 28.8.87 directed the Company to reinstate the Petitionerin his employment as Purchasing Officer with effect from 8.9.87, withouta break in service, and to pay him back wages, amounting to Rs.139,437.50, in respect of the period of non-employment, on or before8.9.87.
The Company did not comply, and applied to the Court of Appeal on
for Certiorari to quash that order; the operation of that order wasstayed pending the conclusion of the Certiorari proceedings, and on2.9.88 that order was quashed. On 4.11.88 the Petitioner was grantedleave to appeal to this Court, which by its judgment dated 21.8.89 allowed,the appeal –
“the judgment of the Court of Appeal is set aside and the
order of the Commissioner of Labour restored. The 1st respondentCompany is directed to re-instate the appellant in the post as itsPurchasing Officer on or before 22nd September, 1989, with all backwages from the date of his non-employment to the date of his re-instatement. All such back wages including all benefits which theappellant would have been entitled to will be paid by the Company onor before 22nd September, 1989. The appellant will also be entitled tocosts fixed at Rs. 1,500."
The quantum of the back wages, and the nature and value of the“benefits”, were not specified. The Petitioner by letter dated 1.9.89 (P6)requested the Commissioner to quantify these, and by letter dated 5.9.89(P7), indicated that the back wages from the date of termination upto
would amount to Rs. 283,187.50 – at the rate of Rs. 5,750 p.m.,admittedly his salary immediately prior to termination. He also stated thatthe “benefits” consisted of normal increases of salary, annual bonus,annual leave and the facility of a vehicle with fuel provided. The very nextday the 2nd Respondent confirmed that according to the informationsupplied by the Petitioner Rs. 283,187.50 was payable as back wagesand that he was entitled to all the benefits previously enjoyed by him.
The Petitioner's Attorney-at-law thereupon addressed several lettersdated 6.9.89 to the 4th-l 0th Respondents (all stated to be Directors of the
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Company), claiming the aforesaid amount as back wages, – “togetherwith all other benefits enjoyed by him, such as Annual Bonus, AnnualIncrements, Annual Leave and vehicle provided with fuel".
The Company replied on 19.9.89, enclosing one cheque for Rs 1,500in full settlement of costs, and another for Rs 30,000 being part settlementof back wages, adding –
“We are unable to pay the total sum referred to immediately as theCompany is faced with a serious liquidity problem. We are makingefforts to settle this claim as early as possible.
Please ask your client to report to work on 22.09.89 at 9 00 a.m."
It was by letter dated 22.9.89, sent by his Attorneys-at-law, that thePetitioner quantified the “benefits” for the first time, assessing these atRs. 100,000 but without indicating any basis of computation.
The Petitioner reported for work oh 22.9.89, and signed the AttendanceRegister; he was asked to wait, in solitary splendour, on the ground floorwhere a table and a chair were provided; there he remained until 2.30p.m., when wearied by idleness, he went up to the 3rd floor and met the7th Respondent. What transpired thereafter is in dispute. The Petitionersays that he asked for his balance dues and for work, but that the 7thRespondent said that the Company could not comply with the judgmentof this Court, that the post of Purchasing Officer no longer existed, that hecannot give any work, and to go back and wait on the ground floor. Hefelt that by staying there his life was in danger, as he was alone, and therewere armed security personnel in and around the building. All this was seto6t in a statement to the Police made on 23.9.89. In a letter dated 23.9.89(P14) to the Commissioner he stated –
“(The 7th Respondent) stated that he is unable to comply with thesaid judgment as they have financial difficulties and the post ofPurchasing Officer no longer exists in the Company, and he wantedme to remain in the ground floor. I remained in the ground floor until 5p.m. closing time.
In the aforesaid circumstances, please be good enough to inquireinto the said matter and see that the Supreme Court judgment isenforced forthwith. “
By letter dated 25.9.89 to the Company and the 4th-l 0th Respondents,the Petitioner's Attorneys-at-law stated –
SC Kamil Hassan v. Fairline Garments (Internationa/) Ltd. and Two Others 399
(Fernando. J.)
“(the 7th Respondent) informed him that the Company is unable tocomply with the orders of the Supreme Court in that the said post ofPurchasing Officer no longer existed in the Company and the backwages would be paid in instalments as the Company had financialdifficulties.”
There is no suggestion that the 7th respondent stated that “he cannot giveany work”.
On 2.10.89, the 7th Respondent, on behalf of the Company, replied tothe letters dated 22.9.89 and 25.9.89 –
"It was intimated to him that he would be required to make purchasesas and when orders are issued to him. It was further intimated to himthat the Company was complying with the order of re-instatement andthat he would be entitled to his remuneration from the day of re-,instatement.
However your client left the premises at the end of the day and has
not reported to workthe Company will make efforts to
pay the balance as early as possible in view of the severe financial
problems presently faced by the Companyyour reference
to benefits of employment in your letter of 22.9.89 is not intelligible andis not borne out by the judgment of the Supreme Court.”
Presumably the latter comment was made because the basis ofassessment of the value ot the “benefits” was not set out in the judgmentof this Court. By letter dated-6.10.89 the Petitioner’s attorneys-at-lawgave a break up of this sum of Rs 100,000.
The Petitioner’s present application has two distinct limbs :
for the issue of a Rule nisi for an alleged contempt of this Court,on the 4th-10th Respondents; and consequential action inrespect thereof; and
for orders –
for the enforcement of the judgment of this Court;
directing the Company and the 4th-10th Respondents topay the Petitioner Rs. 313,500 as compensation in lieu ofre-instatement.
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On 29.11.89, the Company and the 4th-1 Oth Respondents were giventime to file objections in respect of the second limb of the Petitioner'sapplication, and the question whether a Rule nisi should be issued wasconsidered. Learned Queen’s Counsel, as well as Mr. Premaratne, D. S.G., who appeared on notice as amicus, were heard in support, both on thefacts and the law. We did not rule on Learned Queen’s Counsel'ssubmission that Counsel for the Respondents had no right to be heard atthis stage, and in the exercise of our discretion, called upon learnedPresident's Counsel appearing for the Company and the 4th Respondentto make submissions on the questions of law in relation to the issue of aRule. Counsel were given and availed themselves of the opportunity tomake further submissions in writing; the 1st and 4th-10th Respondents'submissions were filed only on 19.2.90.
The first question we have now to determine is whether the materialplaced before us establishes prima facie, as alleged in the draft Ruletendered by the Petitioner, that the 4th-i Oth Respondents "by deliberatelyand wilfully neglecting and /or refraining from complying with thejudgment and order of this Court" (in respect of re-instatement, paymentof back wages in a sum of Rs. 283,187.50,and/or "benefits" in a sum ofRs. 100,000), acted “in defiance of the order and judgment of theSupreme Court and wilfully (refused) to obey the same”.
In so far as non-payment of "benefits” is concerned the judgment ofthis Court does not indicate what these “benefits” are, or their value, or theperiod for which they are payable, or the mode of assessing their value.The Petitioner first estimated their value only by letter dated 22.9.89;being the last date for payment the Respondents could not have knownthe amount claimed even on 22.9.89; the basis of assessment was firstset out on 6.10.89. In the correspondence, one of the “benefits” mentionedis “annual leave” ; but in his supplementary petition setting out thedetailed computation of "benefits", what is claimed is “leave pay “. Therelationship between annual leave and leave pay is not explained. Theclaim in respect of a vehicle was not mentioned in that letter. Anothercomponent of the “benefits” claimed is “annual increments” or “annualsalary increases"; whether annual increments are included in backwages, or are other “benefits”, is not clear. These matters could havebeen, but were not, brought to the notice of this Court while the appealwas being heard, and hence the judgment of this Court is neither precisenor clear as to what these “benefits” are, and how their value is to beascertained. While clarification in respect of these matters may well be
SC Kamil Hassan v. Fairiine Garments (International) Ltd. and Two Others 401
(Fernando. J.).
obtained in other proceedings, contempt proceedings are not inappropriatefor clarification or enforcement of this part of the judgment.
In regard to non-payment of the back wages, although the judgmentdoes not mention either the amount or the basis of computation, thiswould appear to be a straight forward arithmetical exercise; monthlysalary multiplied by the number of months of non-employment. ThePetitioner’s calculation has not been questioned by the Respondents inthe correspondence. The Respondents’ letters do not indicate a wilfulnon-compliance, but suggest an inability to pay due to circumstancesbeyond their control; the delay in payment up to the' time the Petitionercame to Court, was 17 days. Although it was submitted that the Companyhad extensive business interests and assets, matched by equallyextensive borrowings from banks, no material was placed before uswhich even suggested – let alone prima facie established – that theCompany had the capacity to pay or that there was wilful non-complianceor defiance on the part of the Respondents. Failure to pay would notordinarily be, per se, a contempt of Court Ismail v. Ismail (1).
In regard to re-instatement, the Company’s letter dated 19.9.89manifests an intention of re instating the Petitioner. The events of themorning of 22.9.89 do not indicate any change in that intention; in viewof the intermittent nature of the work of a Purchasing Officer the failure toassign work that morning is equivocal. It is the conversation between the7th Respondent and the Petitioner soon after 2.30 p.m. which, accordingto the Petitioner’s version, suggests a wilful refusal to re-instate. Accordingto the Petitioner’s statement to the Police, the 7th Respondent stated“that he cannot give any work"; but this is not mentioned in the Petitioner’sletters dated 23.9.89 and 25.9.89 to the Commissioner and the Company.It would appear from these letters, particularly the former, that any remarkby the 7th Respondent as to inability to comply with the judgment mayhave related to the payment of back wages and not to re-instatement.However I will assume that these two letters are not inconsistent with thePetitioner’s statement to the Police; even on this assumption, it isconsistent with the Company’s position (in letter dated 2.10.89) that workwould be given when available. Further, from the Petitioner's Policestatement, his letters and the averments in his affidavits, it would seemthat the Petitioner wished to leave the premises that very afternoon, andnot to return to work thereafter, as he felt his life to be in danger; he didnot leave that afternoon because he even feared to leave the premisesby himself, and therefore waited till closing time when he could leave inthe company of his fellow workers. One can understand that a person
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unaccustomed to being surrounded by armed guards may reasonablyhave feared danger to life or limb. Learned Queen's Counsel submittedthat the 7th Respondent was a Member of Parliament; and I can assumethat it was in that capacity that heavy security was provided for him.Although it was submitted that these armed guards were brought tofrighten the Petitioner, there is nothing in the affidavits and the documentsto suggest that these armed guards were improperly on the premises, orthat they were brought in order to intimidate or threaten the Petitioner, orthat they did so. The dominant reason for the Petitioner’s failure to reportfor work on 23.9.89 thus appears to have been fear, and not the allegedrefusal of work; the fear entertained by him appears to have been soserious that he would not have returned to work even if work had beenassigned.
An order for re-instatement of a workman requires not merely that heshould be restored to his place of work, and paid his remuneration, butalso that he should be afforded all the rights, duties and functions of hisemployment. In that sense there was no re-instatement of the Petitioneron 22.9.89. However, the restoration of duties must necessarily dependon the nature of the employment. If a hospital is ordered to re-instate asurgeon, there may not be operations scheduled for the appointed date;and there will be sufficient compliance if appropriate work is providedwithin a reasonable time. The Petitioner has not placed any materialsuggesting that work could have been assigned to him that day; nor hashe given any particulars as to the work performed by him prior totermination from which an inference might have been drawn that workcould have been assigned to him that day. An inference that the employerwas wilfully not assigning work could have been drawn if the Petitionerwas kept in enforced idleness for several days. Hence the material placedbefore us establishes prima facie that the Petitioner was not re-instatedon 22.9.89; but is insufficient to establish prima facie that the Companyor any Director “deliberately or wilfully neglected and/or refrained fromcomplying with" the order for re-instatement. Unlike in proceedings underthe Termination Act, where the burden of proving compliance with anorder under the section is placed (by section 7 (2)) on the employer, inthese proceedings it is for the Petitioner to establish prima fads that therewas no re-instatement, and thai this was intentional. The material placedbefore us by the Petitioner also does not establish prima facie that theCompany or any Director was acting in defiance of the judgment of thisCouit, or was wilfully refusing to obey the same, and this ingredient of thecharge set out in the draft Rule tendered by him has also not beenestablished prima facie.
SC Kamil Hassan v. Fairline Garments (International) Ltd. and Two Others 403
(Fernando. J.)
Learned Queen’s Counsel urged that these matters could be establishedto the satisfaction of the Court after a Rule is issued. However, I amsatisfied, for the reasons set out below, that contempt proceedings arenot appropriate at this stage, and hence there is no purpose in grantingthe Petitioner the indulgence of a further opportunity of submittingmaterial to satisfy us that there is. a prima facie case.
Learned Queen’s Counsel submitted that there had been disobedienceto an order of this Court. Learned President's Counsel, for the
Respondents, contended that, the judgment of this Court was that"
the judgment of the Court of Appeal is set aside and the order of theCommissioner of Labour restored," so that the operative order continuedto be that of the Commissioner, made under the Termination Act; thattherefore there could be no contempt of this Court; that the jurisdiction ofthis Court under Article 105 (3) did not extend to punishing contempts ofany other court or tribunal; and that the Termination Act provided theproper, and an adequate, remedy in respect of any alleged non-compliancewith the order.
It is very clear that the Commissioner’s order entitled the Petitioner to-
re-instatement with effect from 8.9.87;
back wages (Rs. 139,437.50) for the period 16.8.85 to 8.9.87;
No other "benefits" for the period 16.8.85 to 8.9.87.
Had there been no writ proceedings, if the employer failed to complywith that order, the Petitioner would also have become entitled, undersection 8 (1) of the Termination Act, to an order for –
remuneration from 8.9.87 until there was compliance;
other "benefits" to which he would have been entitled had hebeen duly re-instated on 8.9.87.
The judgment of this Court entitled the Petitioner to –
re-instatement with effect from 22.9.89;
back wages for the period 16.8.85 to 8.9.87;
back wages for the period 8.9.87 until there was compliance withthe order for re-instatement;
all “benefits which (he) would have been entitled to”.
In my view, (iv) does not refer to the benefits which the Commissionerdid not award (i.e those referred to in (c)), but refers only to (e); if this
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Court was intending to vary the Commissioner's order, it would have doneso expressly. As the question of “benefits” was not raised in appeal, it islegitimate to assume that only “benefits" consequent on theCommissioner’s order were contemplated. Items (ii) and (iii) areidentical to (b) and (d). Hence the only variation is the postponement ofthe date for re-instatement. Had the Company not obtained a stay order,upon the ultimate dismissal of the writ proceedings, criminal proceedingscould have been taken under section 7 of the Termination Act for failureto re-instate on 8.9.87. Having obtained a stay order, the Companyrefrained from re-instating both while the stay order was in force, and afterthe Court of Appeal quashed the Commissioner's order. It may well be■ inequitable to expose a party to a criminal prosecution for an act done oromitted in pursuance of a Court order; indeed, it may have been a gooddefence for the Company to plead that non-compliance was justified bysuch order. Possibly to prevent controversy over such matters, this Courtwhile restoring the Commissioner’s order, varied it to the extent renderedstrictly necessary by the intervening writ proceedings in the two AppellateCourts, so as to obviate any injustice, anomaly and delay. It was notenough for this Court to substitute a new date (22.9.89) in item (a), torthen it might have been argued that the Commissioner's order in respectof back wages was limited to a sum of Rs. 139,437.50 for the period16.8.85 to 8.9.87, and that “benefits”would only be due forthe period after22.9.89. Hence it was necessary to specify that other aspects andconsequences of the Commissioner's order (items (d) and (e)) were notbeing varied, and this the Court did. If the matter had been finallyconcluded in the two appellate courts beforethe date specif ied in item (a),then this Court could have simply affirmed and restored the Commissioner'sorder; the effluxion of time and the stay order necessitated an adjustmentof the daie, and nothing more than this was done.
In coming to this conclusion, I have been mindful of the nature ofCertiorari proceedings, asdistinct from an appellate jurisdiction. Certiorariin relation to the Termination Act will lie to quash an order of theCommissioner, wholly or in part, where he assumes a jurisdiction whichhe does not have, or exceeds that which he has, or acts contrary to naturaljustice, or is guilty of an error of law; it cannot be utilised to correct errors,or to substitute a correct order for a wrong order. If the Commissioner’sorder was not quashed in whole or in part, it had to be allowed to standunaltered. If the Petitioner was dissatisfied with the Commissioner'sorder, in that “benefits” for the period 16.8.85 to 8.9.87 had not beenawarded, it was open to him to have sought relief by way of wrii, perhapseven by a counter claim (as in State Graphite Corporation v. Fernando.
SC Kamil Hassan v. Fairline Garments (International) Ltd. and Two Others 405
(Fernando, J.)
(2) although on appeal that claim failed on the merits; [1982] 2 SriL. R.684); not having done so, the Petitioner could not have asked the Courtof Appeal or this Court to vary the Commissioner's order in his favour.Wade, Administrative Law, (12th ed.), concisely puts the matter thus –
“judicial review is radically different from the system
of appeals. When hearing an appeal the court is concerned with the
merits of the decision under appeal[in] judicial review, the
courtis concerned with its legality. On an appeal the question is‘right
or wrong ?’. On review the question is ‘lawful or unlawful?'
Judicial review is a fundamentally different operation. Instead ofsubstituting its own decision for that of some other body, as happenswhen an appeal is allowed, the court on review is concerned only withthe question whether the act or order under attack should be allowedto stand or not.” (pp. 34-35)
Thus, apart from minor, incidental or consequential variations, renderednecessary by the Certiorari proceedings themselves, or the orders madein the course thereof, neither of the appellate courts would have hadjurisdiction to vary the substance of the Commissioner’s order; andambiguity in the judgment dated 21.8.89 of this Court must be resolvedon the basis that no such variation was intended.
The order that has to be enforced is the Commissioner's order. Mr. H.
de Silva, P. C., categorically stated that this was his client’s position,and that in the Magistrate’s Court or in any other proceedings a contraryposition would not be taken up; we understand that Mr. Faiz Mustapha,P. C., on behalf of his clients, fully concurred in this position. Even if it hadbeen the order of this Court that had to be enforced; learned Queen’sCounsel accepted that the principles applicable had been correctly setout in Dayawathie v. Fernando, (3). In the case of disobedience toinjunctions and undertakings given to court – "coercive” orders – there isstrict liability. But in the case of other orders, non-compliance with thejudgment of a Court would not ordinarily be a contempt of Court Ismail v.Ismail (1). In the latter case, (a) where the law provides for executioncontempt proceedings should not be resorted to as a means of obtainingexecution, and (b) even where there is no provision for execution,contempt proceedings cannot be used as “a legal thumbscrew” to compelenforcement, and mere disobedience would not be contempt, unlessthere is defiance of the court, or contumacious disregard of its order. Notonly is there no ‘'coercive” order here, but sections 7 and 8 of the
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Termination Act make adequate provision for the enforcement of theCommissioner’s order in the Magistrate's Court. Learned QueensCounsel contended that the Petitioner had no status in those proceedings,and that the Commissioner alone could decide on the institution ofproceedings and the specific charge; if there was some error by theCommissioner, or if a wrong order was made, the Petitioner had noremedy. He was unable to point to any provision excluding the Petitioner'sright to institute proceedings, and even in his written submissions noreference was made to any statute or precedent controverting learnedPresident’s Counsel's submission that section 136(1) (a) of the Code ofCriminal Procedure Act, read with the definition of "offence'', entitles thePetitioner to institute proceedings. It was also submitted that theCommissioner had failed in his statutory duty to protect the interests of theworkman, by his failure to appeal against the order of the Court of Appealand to appear or be represented in the appeal to this Court. TheCommissioner in holding an inquiry is exercising a quasi – judicialfunction, and is not expected to lean towards the workman; If his order ischallenged, whether by the employer or the workman, his duty would bethe same, and I doubt whether he must strive officiously to keep his order. alive at ail costs. He had instituted M. C. Colombo 83555/5 in 1988 inrespect of his order, and when requested by the Petitioner's letter P 14to enforce the order of the Supreme Court, he tendered an amendedplaint. His response to the Petitioner’s letters P6 and P7 might even havebeen characterized as too prompt. There is no basis for any criticism ofhis conduct.
Finally, it was submitted on behalf of the Petitioner that the contemptjurisdiction of this Court was “much wider in scope and content thanpreviously vested by section 47 of the Courts Ordinance, and section41(3) of the Administration of Justice Law"; ‘to take cognizance of and totry in a summary manner any offence of contempt committed against orin disrespect of the authority of itself', by reason of the omission of thephrase ‘to try in a summary manner" in Article 105 (3); that this Court nowhas jurisdiction to punish for disobedience of orders of court. That phraseneither conferred nor referred to the jurisdiction, but only to the mannerof its exercise; trial in a summary (or expeditious) fashion, rather than ina "regular” manner, drawing a distincton similar to that between regularand summary procedure in the Civil Procedure Code. Article 105 (3) doesnot define or expand the contempt jurisdiction, but continues the pre-existing jurisdicton.
sc
Weerakoon v. Weerapana
407
The Petitioner’s application for a Rule nisi is therefore refused. Theapplication will be set down for hearing in due course, in respect of thesecond limb, namely prayers (d), (f), (g), (h) and (i).
KULATUNGA, J. -1 agree.
RAMANATHAN, J. -1 agree.
Application for rule nisi refused.

Application for enforcement of Supreme Court judgment andcompensation set down for hearing.